4-15-10
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Rootless Justice in Northern Thailand:
A Short History of Law and Everyday Life
David M. Engel
dmengel@buffalo.edu
Q: Can anyone help us when we don’t receive justice?
A: We could go to the Buddha or to the spirits for help, but I think it’s really up
to our karma.
I.
Introduction
Suppose law affected our lives a great deal less than we think it does. We have
learned that law’s effects are not merely direct and overt but also constitutive. Law
affects ordinary people not only when it is explicitly invoked but in subtle and indirect
ways, when it shapes the fundamental categories, concepts, and relationships that
constrain thought and behavior.1 Law can be oppressive or hegemonic even when its
face is hidden from view. But are there times when this is not true, when law simply has
no connection to everyday life? Under what circumstances might such a radical
disjunction occur?
When ordinary people in Northern Thailand are asked what role law plays in their
everyday lives, the question itself is mystifying. They respond that law for them is
remote, formal, and institutional. They tend to think first of the police. The Thai term
for law (kotmai) carries penal connotations and is associated with encounters – not
always pleasant ones – with representatives of the criminal justice system. Beyond these
relatively rare contacts, however, ordinary people express the belief that law is essentially
irrelevant. Their responses place them at odds with the Bangkok-based media, which
carry daily stories of trials of notable public figures, of rights claims by activists of many
persuasions, and a supposed boom in medical malpractice litigation. Law and policy
experts, both Thai and non-Thai, usually share this expansive view of the role of law in
Thailand. The perception that law plays an ever-increasing role in Thai society, however,
proves to be at odds with the everyday experiences of ordinary people.
In a recent study of injuries in northern Thailand, we attempted to discern the role
of law in one sector of everyday life by interviewing a cross-section of men and women
who had been treated in a major Chiangmai hospital after involvement in serious
accidents.2 As we listened to the injury victims’ extended accounts and analyses during
1
2
Engel & Munger; Sarat & Kearns
[Explain research methodology]
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this “prelegal” moment in their experience, we attempted to discern how and when law
played a part in their thoughts and actions, both directly and indirectly, instrumentally
and constitutively. At the same time, we studied the flow of personal injury cases in the
records of the Chiangmai Provincial Court, tracing what appeared to be a steady decline
in litigated tort cases per actionable injury over a thirty-year period. The detailed
findings of this study are presented elsewhere.3 For purposes of the present paper, it is
sufficient to note four basic conclusions: (1) Turn of the century social and demographic
changes in northern Thailand drastically undermined a longstanding customary law of
injury that had provided remedies for several centuries at the village level; (2) As
customary law declined, so did its connection to official tort law, which had previously
provided a forum of last resort when village-level conflict resolution failed; (3) The
severed connection between village-level practices and official law was associated with
the rise of new forms of Buddhist practice and a perception that religious belief is now
opposed to adversarial legalism; (4) Both the individual interviews and the court-based
litigation data revealed a decline in the role of law in injury cases and a pervasive
disinclination to embrace the discourse of rights.
The interviewees did not interpret their experiences through frameworks
influenced by legal categories and concepts. As they pondered issues of causation, harm,
and responsibility, they almost never suggested that legal rights and remedies had the
slightest relevance to their misfortune. In this paper, I will attempt to explain why the
everyday lives of accident victims appear so radically disconnected from the law. I will
suggest that the relationship between injury law and everyday life was shaped by two
transformational periods in the modern history of Lanna, the northern region of Thailand:
(1) Its integration into the modern Thai state and its political and cultural subordination
from 1890-1935, a story usually told from the perspective of Bangkok as a triumphant
achievement by one of Thailand’s greatest kings, who protected Thailand from the threat
of colonization; and (2) The impact of globalization on Lanna from 1980-2000, a period
of dramatic socioeconomic change that drastically altered the relationship between
villagers, their birth communities, and the customary legal practices that had long
prevailed.
The perspective offered in this analysis will in some respects go against the grain
of prevailing thought about law and legal consciousness in Thailand, which tends to
accept law’s prescriptive purposes as if they were descriptively valid. I will suggest that
such views have been unduly influenced by the powerful ideology of the centralized Thai
state that was articulated and disseminated by King Vajiravudh (r. 1910-1925)4 in the
early twentieth century – a unifying myth that was deliberately designed to weaken and
destroy distinctive regional traditions by emphasizing an imagined whole bound together
by the symbols of chat (nation), satsana (religion), and phramahakasat (king). Legal
scholars, policymakers, and the media have sometimes viewed the role of law in Thai
society as if the unifying mythic framework presented an unproblematic picture free of
tensions, conflicts, and resistance, despite clear historical evidence to the contrary. In
this paper, however, I will suggest that viewing the role of law in northern Thailand
3
4
Engel & Engel, 2010.
See Baker & Phongpaichit, 106-7; Wyatt, 229.
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through this Bangkok-centered ideological lens is like observing through a rifle sight
aimed at the heart of everyday legal traditions in Lanna.
II.
Stage One: Creation of the Modern Thai Nation-State
The first transformation of law in everyday Thai life began with the establishment
of a completely new Thai legal and political system at the turn of the twentieth century.
From the 1890s to the 1930s, sweeping changes launched by the Thai monarchy
abolished longstanding conceptions of law and government and replaced them with
European models. In the process, the central Thai government changed the relationship
between village-level customary legal practices and the official legal system. As a result,
customary law was relegated to a shadowy unrecognized existence which nonetheless
had a powerful influence on the behavior of ordinary people and their selective use and
nonuse of the new legal system.
Rama V (King Chulalongkorn), revered today as the great modernizing king who
oversaw the creation of the modern Siamese5 state, was placed on the throne in 1868 at
the age of fifteen. Young and essentially powerless, his functions were performed by a
regent until his second coronation as an adult in 1873. The early years of his reign were
marked by an attempted coup and by continuing threats and conflicts involving the
British colonizers to the west and south and the French to the north and east. The
Siamese governing structure he inherited had become a confusing amalgam of civilian
and military administrative responsibilities distributed in seemingly arbitrary ways across
the territory of the kingdom.6 The polity was “galactic” in the sense that it “was not so
much a bureaucratized centralized imperial monarchy as a kind of galaxy-type structure
with lesser political replicas revolving around the central entity and in perpetual motion
of fission or incorporation.” 7 The Lanna region of northern Thailand was in this sense
only nominally a part of the kingdom although its leaders had chosen to associate
themselves in a kind of tributary relationship with the Siamese monarch since the late
eighteenth century, in large part to free Lanna from centuries of control by the
neighboring Burmese. Lanna had its own rich political, legal, and cultural traditions and
Chiangmai was itself a galactic center, at least at certain times in its history, in relation to
the lesser principalities of the north.
In 1939, “Siam” became “Thailand.” Before the reforms of King Chulalongkorn, “Siamese” was an
uncertain referent. It clearly referred to the inhabitants of what is now central Thailand, but the residents of
Lanna and other outlying regions regarded themselves as “people of the principalities” (khon műang),
members of the Tai ethnolinguistic group who were not Siamese. Indeed, Winichakul (115) suggests that
early nineteenth century maps “may indicate that in the perception of the Siamese themselves, the Lanna,
Lao, and Cambodian regions were not part of Siam.”
6
As King Chulalongkorn himself described it, the Ministry of Interior (Mahatthai) had primary
responsibility for civilian and military matters in the north, the Ministry of Defense (Kalahom) had primary
responsibility for civilian and military matters in the south, and the Ministry of the Treasury (Khlang)
controlled ports and coastal provinces. Phraratchadamrat song thalaeng phraborommarachathibai
kaekhai kanpokkhrong phaendin [Speech explaining the governmental reforms], 3-6.
7
Tambiah, 70.
5
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As the British and French threatened to seize part or all of what he considered his
territories, King Chulalongkorn and his princes embarked on a remarkable state-building
project that preserved Siamese independence from colonial rule. By the end of his reign
in 1910, a new kind of polity had emerged based on a rationalized bureaucracy, a
centralized economic, military, educational, and religious administration, and a
European-style legal system complete with a three-tiered judiciary controlled from the
capital and a set of civil and criminal law codes.8 The centralization of political and legal
authority was accomplished through the thesaphiban system, an administrative structure
that divided the nation into regions (monthon), provinces (müang), and districts, each led
by a man appointed by and accountable to the central government. The galactic polity
was replaced with an administrative grid by which the capital exerted control in equal
measure throughout the kingdom. The creation of a European-style Siamese nation-state
and the negotiation of fixed and clearly demarcated boundaries helped to keep the
English and French at bay. The essential features of the modern Thai legal system
emerged with clarity in a relatively short span of years, including the Penal Code of 1908,
The Criminal and Civil Procedure Codes of 1934, the Civil and Commercial Code of
1935, and the Charter of the Courts of Justice of 1935. A coup d’etat in 1932 led to the
enactment of a constitution, the first of eighteen up to the present time.9 In 1939, “Siam”
became “Thailand” – an unmistakable affirmation of the principle that the nation was not
only independent (the word Thai is said to mean “free”) but also composed of all the
ethnically Tai peoples within its borders, not just the Siamese.
Accounts of these extraordinary transformational years usually emphasize the
brilliance and heroism of the national leaders who simultaneously created a nation and
preserved its independence. The unified Thai legal system, whose creation was overseen
by the king’s son, Prince Ratburi Direkrit, is closely identified symbolically with this
seminal period in the nation’s history. Yet the mythic story of origins, often retold, is
almost entirely Bangkok-centered. For the rulers and ordinary citizens of what were once
semi-autonomous regions such as Lanna, the process of state-building had somewhat
different meanings. Because modern perspectives are still imbued with the early
twentieth-century nationalist ideology of state-religion-king, it may be difficult to
appreciate the implications of this transformation as it was experienced at the time in
outlying areas. Yet, as Winichakul observes in his analysis of the contemporaneous
extension of Bangkok’s control into the northeastern region of Siam,
if we merely change our point of view, the entire story about the administrative
reform. . . reads very much like a colonial history in which Siam always claimed
its natural superiority over the regional horizon. Because of this, the function of
the external threat as the causality of the stories is vital for the history of Siam.
Not only can this element alter the contextual reference as suggested. It can also
shift Bangkok’s perspective from a view towards its victims to another view
toward the external powers. The shifting perspective conceals the expansionist
desire but magnifies the anticolonial pretension.10
8
Harding. Engel.
Tom Ginsburg 2009.
10
Winichakul 148.
9
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Thus, in Winichakul’s view, the creation of the modern Thai nation-state was presented
in a discourse of anticolonialism yet the administrative transformation necessarily
involved what he calls “colonizing actions” by Bangkok itself in relation to regions such
as the northeast and Lanna.11 The very conception of nation-religion-king as
transcendent within the territory of Siam required a suppression of local traditions,
leaders, laws, religions, and political autonomy. The process of internal hegemony was,
however, almost invisible to the Siamese, who considered themselves “We” in relation to
the residents of Lanna, unlike Europeans and other foreigners whom they viewed as
“They.”12 Whether the Siamese were seen as “We” or “They” from the Lanna
perspective is a question that has not been closely examined.13
In this paper, I suggest that the radical transformation of the Siamese state had
profound implications for the role of law in everyday life in Lanna. In order to gauge the
consequences, it is necessary first to reconstruct the texture of law in everyday life prior
to the advent of the thesaphiban system with a particular focus on the handling of injury
cases. Some degree of speculation is required simply because the historical record is so
thin and because little attention has been given to the distinctive character of village-level
customary legal traditions in Lanna. Nevertheless, based on ethnographic research and
on recently recovered nineteenth century law texts, it is possible to sketch a plausible
picture.
Injuries among ordinary villagers in Chiangmai were for the most part resolved by
village chiefs (pho luang, or “big father”) who mediated conflicts of many kinds and
applied what we might in retrospect consider a form of customary law based on local
understandings of Buddhist doctrine (thamma) and of the wishes of the guardian spirits.
Mediators sought to achieve harmonious outcomes, and overly adversarial behavior was
discouraged. A disputant who was too aggressive in his or her demands was likely to
continue the karmic cycle of injury and retaliation, not only in this lifetime but in future
lives. Yet wrongful acts could not be ignored and damage to the social fabric had to be
repaired. Improper behavior offended the spirits and put the entire community at risk,
requiring the wrongdoer to perform propitiatory rituals and/or make payments to fellow
villagers so that they could seek the aid of the spirits, recall the khwan,14 or improve their
karma (kam).
11
Id. 106.
Id. 107.
13
But see Thanet.
14
The khwan is a flighty spiritual essence found in all living beings and in some natural objects such as
rice fields, mountains, and even automobiles. Each human possesses 32 khwan located in various parts of
the body (Phaya Anuman Rajadhon 1963; Nimmanhaemin 1978, 106; Chetphatanawanit 2003, 63). When
an individual suffers fright, trauma, or physical injury, it is said that the khwan flies out of the body, and a
ritual – known as riak khwan – must then be performed to recall the khwan and bind it in the body by tying
a sacred string or thread around the wrists. Loss of the khwan causes the individual to become unwell, both
physically and mentally, and the confusion and alienation of the afflicted person was, at least in the past,
understood to pose a risk to the entire community. The injurer’s payment to an injury victim is known as
kha tham khwan – payment to restore the khwan – a term for compensation that is used in legal as well as
non-legal contexts.
12
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In order to ascertain the views of the spirits in this regard, injury victims or their
families consulted spirit mediums, who had the ability to speak to villagers in the voice of
the guardian spirits and explain the underlying cause of injury. The spirits thus played a
dual role in injury cases. On the one hand, the behavior of an injurer could cause offense
to the spirits and require a remedy for the good of the entire village. On the other hand,
the spirits themselves could cause injuries or illness when they were displeased by
behavior within the village. For example, it was not unusual for a spirit to be offended by
the sexual misconduct of a female villager15 and to injure or sicken another family
member as a form of indirect punishment. Thus, questions of causation were often
addressed by spirit mediums and were related in sometimes complicated ways to the
maintenance of social order within the village.
The conceptualization of physical injury did not resemble the modern notion of a
tort. For one thing, harms suffered at the hands of another human or spirit might take
many forms: bodily injury, fever, stomach ache, or a psychic disorientation indicating the
loss of the khwan or possession by a ghost. Also, the physical self was not considered
sharply bounded and autonomous. The personalities and spiritual essences of villagers
were interconnected from birth. Injury or illness suffered by one person harmed others in
his or her relational network, and numerous villagers might have a direct interest in
seeing that proper remedies and rituals were provided. Furthermore, wrongful acts such
as offenses to village spirit shrines or the spirits of rice fields had collective dimensions
and were not seen as being aimed at any particular person. Such harms were considered
very serious, and they demanded a legal remedy, but they were quite unlike the sort of
individuated (or even aggregated) tort case that is envisioned in a European legal system.
A key feature of village-level legality familiar to ordinary people was its
conceptual linkage to official legality administered at the highest levels of the Lanna
political system. The household, the village, and the műang were organized spatially and
symbolically upon identical principles and were organically connected to one another
within a single hierarchy. Each of the three levels in the hierarchy centered on a sacred
post or marker representing Mount Sumeru surrounded by the four continents.16
Moreover, as Davis observes, houses and towns were geographically oriented along
north-south and east-west axes to replicate the sacred spatial arrangements of the műang
capital, thus creating a shared sense of identity linking villagers to the Lanna region in
which they lived:
Houses and towns are thus oriented in the same manner. The dwelling is a
miniature representation of a muang, and households may be said to form
the very lowest level of the muang hierarchy. By constructing his house
on the model of the muang, the household head in effect asserts that he is a
Khon Muang, a person of the muang.17
15
See injury narrative of Buajan in Engel & Engel 2010; see also Davis at 000.
Morris 118.
17
Davis 1984 at 47. See also Morris 119-120.
16
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Just as the geo-spatial arrangements of house, town, and műang reflect a shared
vision of cosmic order, so did the law of injuries reflect a single understanding of wrong
and remedy. Customary legal arrangements at the village level were founded on the
same principles as the provisions of the royal law texts, known as mangraisat, or the
sastras of King Mengrai, the mythical founder of Chiangmai and the Lanna kingdom.
Copies of these law texts on palm leaf manuscripts have been found in temples
throughout the Lanna region. Scholars have transcribed them and translated them from
northern dialect into standard central Thai, but they are still awaiting analysis by sociolegal experts. The absence of scholarly attention is disturbing, since the existence of a
vibrant and unique legal tradition in northern Thailand challenges the simplistic picture of
Thai legal history that usually depicts the process of codification under King
Chulalongkorn only in terms of the supersession of central Thai law texts such as the
Law of the Three Seals.
Even a cursory reading of the many mangraisat texts that are now available
suggests that the royal law codes of Lanna had many unique qualities and that they were
organically connected to village level customary law. For example, in a palm leaf
manuscript discovered in Wat Chiang Man in the city of Chiangmai,18 which is notable
for its many sections dealing with injuries, certain provisions explicitly punish wrongful
acts directed at local guardian spirits:
If a person stealthfully cuts down a tree that is the habitation of a village
guardian spirit, he must perform a ceremony for the spirit according to
custom. If a pig is usually offered, he must offer a pig. If a buffalo is
usually offered, he must offer a buffalo. But everything he offers must be
four times the usual amount. If he fails to make this offering and a person
in the village dies as a result, he must pay the value of that person (kha
khon).19
If one destroys the boundary marker of a rice field valued at 1 baht silver,
he must be fined nine times the value and must offer two vessels of liquor,
two pairs of chicken, four candles, flowers and incense in a ceremony to
propitiate the guardian spirit of the rice field and gardens. For the items
he has damaged, he must pay 100 baht silver. If he is poor, he must pay 5
baht silver. If one destroys the boundary marker of the village, he must be
fined 330 pieces of silver.20
Other provisions in the same text appear to codify decisions in actual injury cases
litigated by villagers in the official courts of the műang rulers:
If one leaves a knife, sharp stick, a spear, or a sword stuck in the ground
and they fall on another and kill him, or if a person runs into them and
kills himself, the owner of the spear, sword, or sharp stick must pay half
18
Na Nagara et al. 1988
Id. 240
20
Id. 241
19
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the damages. If it is an animal that is killed, he must pay all the damages
because an animal cannot understand human language. If there is no
death, the injurer must pay for medical treatment.21
If villager protects himself against kidnappers and robbers by erecting a
barricade of sharp wood, and if an animal is killed as a result, the villager
must pay its value but there is no fine. If the animal is injured, he must
care for it. If it is crippled, he must pay its value and the animal will then
be given to the villager. If an animal is killed during the daytime, the
villager must be fined according to the law. If a person is killed during the
daytime, he must pay the value of three people because during the daytime
it is a necessity for people to go out and work.22
The organic connections between village customary law and the royal law codes
of Lanna were abruptly terminated as a result of the legal and political transformations at
the turn of the twentieth century. At the village level, dispute resolution and injuryrelated beliefs and practices continued relatively unchanged. Village chiefs and spirit
mediums continued to play their central roles. The role of Buddhism and spirit worship
remained central. Concerns about karma and virtuous responses to personal wrongs still
tempered the shared recognition that injurers bore a heavy responsibility to make amends
for affronts to the guardian spirits and had to help repair the damage they had caused to
the community as a whole. Yet these beliefs and practices were nowhere reflected in the
newly-codified law of torts that was promulgated in Bangkok. Consider the fundamental
provision of the Law of Wrongs, drawn almost word for word from contemporary
German tort law:
Section 420. A person who, wilfully or negligently, unlawfully injures the life,
body, health, liberty, property or any right of another person, is said to commit a
wrongful act and is bound to make compensation therefor.
Section 420 contains no mention of or even indirect reference to Buddhism, spirit
worship, karma, or traditional village practices. Nor do the provisions concerning
remedies acknowledge or reinforce village-level remedial practices or rituals as did the
provisions of the mangraisat:
Section 438. The Court shall determine the manner and the extent of
compensation according to the circumstances and the gravity of the wrongful act.
Compensation may include restitution of the property of which the injured person
has been wrongfully deprived or its value as well as damages to be granted for
any injury caused.
Section 443. In the case of causing death, compensation shall include funeral and
other necessary expenses. If death did not ensue immediately, compensation shall
include in particular expenses for medical treatment and damages for the loss of
21
22
Id. 254
Id. 255.
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earning on account of disability to work. If on account of the death any person
has been deprived of his legal support, he is entitled to compensation therefor.
Section 444. In the case of an injury to the body or health, the injured person is
entitled to receive reimbursement of his expenses and damages for total or partial
disability to work, for the present as well as for the future. . . .
These and other provisions of the new Thai law of torts suggest a total break with
customary practices that were familiar to Lanna villagers. The language of state law in
effect denied the existence of the conceptual universe in which the villagers lived, and it
excluded from consideration the royal law codes that had formerly linked that universe to
the judicial and governmental structure of the Lanna rulers. The official law of injuries
now had no connection to Lanna culture. Indeed, because the same law was applied
throughout the kingdom, it could be said with equal accuracy that Thai tort law had
disconnected itself generally from Thai culture, religion, and customary practice.
Was it merely an unintended consequence that the new law of the Thai nationstate severed the roots that formerly connected official law to the everyday beliefs and
practices of ordinary people? Clearly not. The Bangkok ruling elite had designed its
reforms specifically to disempower local rulers in regions such as Lanna. For a time,
local princes became civil servants in the new administrative structure, and Chiangmai’s
region (monthon) was temporarily granted the right to initiate minor legislation pending
subsequent approval from Bangkok.23 But the direction of change was clear: Local rulers
and regional power centers were subordinated to control from Bangkok. Recognition or
preservation of the traditional law-ways of Lanna would have obstructed the
centralization of power. Law was a crucial element in the strategy of reducing
Chiangmai to the status of one of many provinces in the administrative structure of the
new nation-state. The separation of official law from everyday life was not an incidental
byproduct of this process; it was essential to the strategy of the modernizing Siamese
elite.
The glowing and oft-told story of Thailand’s legal and political modernization,
therefore, fails to capture the full impact of these reforms on Lanna and other outlying
regions. Lanna residents, however, clearly understood their import. Short-lived
uprisings occurred in the first decade of the twentieth century in southern Thailand, in the
northeast, and in Lanna. The so-called Shan Rebellion involved immigrant workers from
Burma who, in 1902, took over the government offices in the province of Phrae and went
on to attack Siamese officials in Lampang, the province adjacent to Chiangmai. Their
uprising against the representatives of the central government was supported by the
traditional Lanna nobility as well as the local populace.24 As Ongsakul observes, “The
Shan Uprising had revealed clear splits and lack of understanding between khon mueang,
Lan Na people, and khon Thai, Thai people. The idea that everyone was part of one
people, one nationality, under the absolute monarchy had a long way to go.”25 The
23
Cite PKPS
Wyatt 214.
25
Ongsakul 209.
24
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efforts of the Siamese to break down this resistance and to suppress distinctive Lanna
political and cultural institutions, however, ultimately proved successful: “Gradually the
traditional character of Lan Na broke down in virtually every area, from politics, the
economy, society, and education to religion, the arts, and culture.”26
The campaign against Lanna traditions included, importantly, an effort to
suppress religious practices which, as we have seen, were closely connected to
“premodern” law and to spirit worship at the village and the műang level. The famed
Lanna religious teacher, Khruba Siwichai, led the opposition to centralized control over
the Buddhist clergy in Lanna, in defiance of the National Sangha Administrative Act in
1902, which was designed to eliminate distinctive regional religious practices and to
replace them with practices approved from Bangkok. Khruba Siwichai attempted to
preserve traditional Lanna religious traditions in the face of these efforts by the central
government, but in 1935 he was ordered to report to religious authorities in Bangkok and
was not allowed to return to Lanna until six months later, after he had agreed to curb his
independent activities. As Ongsakul observes, “Khruba Siwichai symbolized the last
wave of opposition to administrative reform in Lan Na.”27 The campaign against Lanna
religion went hand-in-hand with the campaign against Lanna political and legal
traditions. Both were designed, among other things, to destroy the very foundations of
law in everyday life.
III.
Stage Two: The Impact of Late-Twentieth Century Globalization
Despite opposition to Bangkok’s turn of the century assimilationist policies in
Lanna, the nationalist ideology of nation-religion-king ultimately prevailed, and a
centralized legal system founded on European models replaced Lanna legal traditions
rooted in local cultural and religious practices. Although the linkages between villagelevel legality and the administration of justice in the official legal system were broken,
however, village customary law persisted without formal recognition or support, and
most injury cases were handled at the village level according to customary norms and
practices.
Some injury cases, however, resisted resolution because the incident occurred
outside the jurisdiction of village authorities, the injurer and the victim lived too far apart,
or because the expected mediator was himself a party to the dispute.28 Injury cases that
could not be resolved in the village sometimes found their way to the Chiangmai
Provincial Court, where the parties had to translate their claims – and their very identities
– into a different language. Once there, however, the plaintiff’s underlying goals often
remained the same: to receive a payment calibrated to the cost of traditional ceremonies
to make merit or to propitiate the spirits. If the defendant offered the desired amount
before trial or judgment, the plaintiff would withdraw the suit.29 This occurred even
26
Id.
Id. 213.
28
See examples in Engel 1978.
29
Engel 1978.
27
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when the plaintiff in an injury case brought a private criminal action, which should not in
theory be withdrawn on the basis of a money settlement with the defendant.30 Thus, the
official legal system was actually used by injury victims – sometimes inappropriately – as
an extension of the customary legal system, applying pressure in cases that exceeded the
capacity of village level actors or institutions but adhering to the same underlying norms
and goals. Significantly, however, the close connection between official law and the law
of everyday life could no longer be openly acknowledged as it had been before the birth
of “modern” Thai law.
Our research in Chiangmai in the 1970s suggested that this covert connection
between customary and official law determined the course of most injury cases in two
related ways: First, injury victims expected that their cases would be resolved at the
village level and that they would received a customary remedy. The continuing vitality
of the village-level legal system meant that litigation rates in the Chiangmai Provincial
Court were relatively low, since most cases were resolved locally. Second, because
injury victims did expect some sort of remedy, a small but steady stream of unresolved
cases made their way to the official legal system where they were almost always settled
and withdrawn, whether they were filed as civil or criminal actions. The court reinforced
customary law by serving as a forum of last resort, ensuring that injurers could not escape
their responsibilities to the victim and to the community as a whole.
By the time we conducted our follow-up study in the 1990s, however, the picture
had drastically changed. The number of injuries had almost certainly increased greatly,
because of a nearly 800% increase in the number of motor vehicles on the highways.
Most injury victims came to the hospital because of traffic accidents, and most injury
cases in the Chiangmai Provincial Court also originated in motor vehicle mishaps.
Despite the probably substantial increase in the number of injuries in Chiangmai
Province, however, the number of tort cases per thousand population had remained about
the same. In effect, therefore, the rate of tort case per injury had dropped substantially.
On average, from 1992-1997, only eleven personal injury cases per year were litigated in
the Chiangmai Provincial Court out of a population of more than 1,300,000 people.31
Moreover, interviews with injury victims revealed that the norms and procedures of
village-level customary law had become unfamiliar in many cases and incapable of being
applied in nearly all cases. Obtaining a remedy from the injurer had become highly
problematic.
What caused this dramatic change in the relationship between customary law and
official law? A second transformation occurred at the end of the twentieth century as a
result of accelerated global influences that affected Lanna society in many ways. During
the 1980s and 1990s, the Thai export-oriented economy boomed, foreign direct
investment increased, and at the same time the country became a prime tourist destination
for Asians, Europeans, Australians, and Americans. Although Thailand’s industrial
development was concentrated in the central region, Chiangmai experienced secondary
effects with the establishment of numerous factories, workshops, and industrial parks.
30
31
Id. See also Petchsiri.
Engel & Engel 105
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Many younger workers left the villages to take up wage labor in the city of Chiangmai or
in Thailand’s central region. Farmland was sold off and turned into housing
developments. Most of the interviewees in our study lived far from their birth villages
and described themselves as cut off from the practices, beliefs, and rituals that had shaped
the everyday lives of their parents and grandparents. At the same time, the growth of
mass media – television, newspapers, the Internet, films, music, and videos – brought
new ideas and images to replace those that had been familiar for generations in the
villages. In short, Chiangmai’s culture, economy, and society underwent a massive
transformation toward the end of the twentieth century, and village life was dramatically
altered as a result.
Interviews with injury victims revealed the impact of these changes on the role of
law in everyday life. Injuries no longer occurred in the context of integrated village
communities. Interviewees no longer spoke of offenses against the guardian spirits of the
house or village, and they did not believe the injurer’s misconduct affected anyone but
themselves. As identity became more sharply individuated, injuries and remedies lost
their relational and communitarian qualities. While injury victims might still hope to
receive some form of compensation from their injurers, no one else was thought to have a
direct stake in ensuring that a remedy was provided. Community pressure on the injurer
to comply with customary law had all but disappeared.
The decline of customary injury norms and procedures is symptomatic of the
decline of village culture in general. As individuals live and work far from their birth
villages, their relationships with fellow villagers and with local authority figures have
become attenuated. The mutual obligations that formerly bound them together are less
compelling than before. Moreover, the interviewees frequently stated that they were
unfamiliar with the beliefs and rituals that had been so important to their parents and
grandparents. As one injury victim explained:
If we followed the old customs, that would be good. But we don’t know how to
do it now. Because we, how should I say it, we have entered the modern world
now. How can I explain this? The old ways have ended; we don’t know how to
do these things. I like them, but I can’t do them.
The customary law of injuries, which was an integral part of the “old ways” cited by
Saikham in this quote, disappeared not only because there was no one to enforce it but
because its conceptual underpinnings had been destroyed by the dramatic social and
cultural transformations of the late twentieth century.
Formerly, the customary law of injuries had remained vibrant despite its
disconnection from the official law of torts. Now, however, it has sharply declined and
even disappeared from the consciousness of nearly all the injury victims we interviewed.
What has replaced it? What can we say about law in everyday life in the twenty-first
century, insofar as injuries are concerned? None of the interviewees consulted a lawyer
or expressed a serious intention to use official tort law to obtain a remedy. With the
decline of customary law, state law no longer serves as a forum of last resort, and the low
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rates of tort litigation as well as the personal accounts of injury victims suggest that the
Chiangmai Provincial Court has not taken on a new role as a forum of first instance when
injuries occur. The discourse of rights and rule of law is nowhere apparent in the accounts
of injury victims. Instead, injured persons tend to forego any demand that the injurer
provide them with substantial compensation.32 Their refusal to pursue a remedy is
couched in terms of Buddhist doctrine in general and the law of karma in particular.
In the past, it was always said that the religious beliefs of Thai villagers were a
complex mixture of Buddhism and spirit worship. Nearly every injury victim we
interviewed in Chiangmai in the late 1990s still expressed belief in both Buddhism and
spirits, yet they described an unmistakable shift in religious practice. Spirit worship for
them was no longer tied to a village community. Belief in ghosts and spirits was still
important but had no role in enforcing social norms or maintaining order. Buddhism, on
the other hand, was increasingly disconnected in their minds from spirit worship.
Perhaps as a result of the influence of popular new Buddhist movements, such as
Dhammakaya or Santi Asoke,33 or because of the increased tendency to “access”
Buddhism through television, radio, books, or the Internet rather than through local
village temples, the organic linkages between the practices of Buddhism and spirit
worship have diminished.
Interviewees invariably cited karma as a primary cause of their injuries. They
believed they had committed some nonmeritorious act that led to their current misfortune.
One young man believed his bad karma originated in his employment in a slaughter
house; a middle-aged woman thought her leg was broken because she had beaten a dog
with a stick and broken its leg; a farmer traced her motorcycle accident to the gardening
work she did with her husband, since their tilling of the soil must have inadvertently
injured or killed the tiny creatures who lived in it. Some interviewees stated that they
were suffering now because of sins committed in a previous life. In fact, it was possible
that they had injured their injurers in their previous existence. The cycle of injury and
counter-injury would continue through many lifetimes and could only be broken if they
manifested the Buddhist virtues of compassion and forgiveness. Rather than insist on a
remedy, they elected to acknowledge the karmic origins of their misfortune and forgive
the injurer. In this way, they could provide better protection for themselves and their
family members against future harm than by seeking monetary compensation.
In the past, injury victims were not required to choose between meritorious action
and the pursuit of a remedy. Seeking compensation was not a violation of Buddhist
teaching, it was not selfish or materialistic, since it reinforced the wellbeing of the entire
community and all the villagers joined the injured person in demanding compliance with
customary obligations. After the dramatic social transformations of the late twentieth
By “substantial compensation” I mean something more than just the token payment of a few thousand
baht. Tort cases litigated in the Chiangmai Provincial Court from 1992-1997 led to mean awards of
189,152 baht (at that time, approximately $4,729) and court-approved settlements of 100,000 baht
(approximately $2,500). See Engel & Engel at 117. “Substantial compensation” would approximate these
figures.
33
Cites
32
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century, however, individuals who no longer lived in their birth villages faced a
dichotomous choice: be a good Buddhist or invoke tort law. Buddhism and law are now
understood as oppositional rather than mutually reinforcing. Although some interviewees
expressed displeasure that they received no compensation from the injurer, they
unanimously agreed that attempting to comply with Buddhist doctrine (as they
understood it) was a better course of action than insisting on one’s rights. Indeed, an
interviewee named Buajan who had previously argued with the old man who had run her
down in his car,34 told us in a recent re-interview that even her initial request for modest
compensation had created bad karma that led to misfortune for herself and her family.
She attempted several years later to visit the old man and beg his forgiveness, but his
family prevented her from meeting him because they feared that she would simply renew
her demands. It is a striking demonstration of belief in the law of karma that an innocent
injury victim who had received a relatively small payment35 from a negligent injurer
would consider it necessary to ask him to forgive her. There could be no clearer
illustration of the disappearance of customary law as well as the absence of official law in
the everyday lives of injury victims in contemporary Chiangmai.
IV.
Conclusion
Contrary to conventional wisdom and popular belief, law may play little if any
role in some sectors of everyday life. In contemporary Chiangmai, tort law has become
almost totally divorced from the views, experiences, and behavior of ordinary people who
suffer injuries. In this paper, I have attributed this disconnection of law and everyday life
to two transformational eras that forever changed the status of Lanna in relation to the
Thai nation-state. In the first era, the Siamese government deliberately attempted to
eliminate Lanna law and legal practices as they had long existed at the levels of the
village and the principality. Although the effort succeeded in abolishing official Lanna
law, it failed to eradicate village-level practices that were based on longstanding beliefs
and traditions. Customary injury practices remained in effect and pervasively influenced
the use and avoidance of official Thai tort law until the second transformational era, the
period of intensified global influences at the end of the twentieth century. In this later
period, as village society changed and injuries took place far from the locations where
customary law had compelled the obedience of the disputants, customary remedial
practices were forgotten and enforcement mechanisms became ineffective. Rather than
turning to Thai tort law to fill the void, injured persons now tend to express a preference
for Buddhist teachings that they have come to view as oppositional to law. Such
teachings, which emphasize karma and forgiveness, no longer articulate with locality
based spirit worship which had long served as the foundation for customary injury
practices. Embrace of this more “fundamental” form of Buddhism leads injury victims to
forego the quest for substantial compensation from the injurer. Along with the
elimination of traditional Lanna law, the syncretic framework of traditional Lanna
religion has also been shattered.
Buajan’s story, based on the first interview, is presented in detail in Engel & Engel 21-32.
Buajan received 30,000 baht (approximately $750) for a seriously debilitating injury that led to loss of
wages over an extended period of time.
34
35
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The divorce of law from everyday life in northern Thailand has left a residue of
dissatisfaction and even despair. While the interviewees generally expressed deep faith
in the workings of karma and the efficacy of Buddhist practice to deal with misfortune,
they also expressed the sense that they live in a world where justice is beyond the reach
of ordinary people – at least in the short run. As Buajan stated in our first interview,
before she attempted to apologize to her injurer:
I didn’t receive justice. . . . I really came out badly, especially because I was a
person with no resources. . . . No matter how holy the law is, I have no hope of
using it. I don’t stand on the law, I stand on my own two legs, even though one of
them is broken.
The very concept of justice no longer has roots in everyday life, nor is it rooted in Thai
tort law which was almost never mentioned by any interviewee. The separation of law
from everyday life leaves injury victims with little hope for justice until the time – in this
life or in some future life – when karma settles the accounts.